During the last decade, the European Court of Human Rights has been called on to consider the potential conflict between freedom of expression protected under article ten and the right to reputation protected as part of private life under article eight on an almost continual basis. (1) However, as a medium of communication that has the potential to reach a wider audience than ever before, the Internet introduces new considerations to the finding of an appropriate balance.

Indeed it is on this basis that the decision in Delft AS v. Estonia (Delft) is of wide reaching importance, because it marks the first time that the European Court of Human Rights has been called on to consider the authorship of user-generated content on Internet news websites, and the potential liability of the site provider for the dissemination of unlawful speech. Analysis of the Delft decision demonstrates the Court's difficulty in balancing the rights under article ten and eight more generally, but specifically so in relation to user-generated content through the Internet.

FACTS

The applicant company are the owners of the Delft news portal, one of the largest news websites in Estonia. They publish in the region of 330 news articles a day, attracting up to 10000 reader comments, which are most commonly posted under pseudonyms. (2)

Delfi had a notice-and-take-down system in place, whereby readers could mark a comment as leim (meaning insulting or inciting hatred). Once Delft had received such a notice the comment would be removed. There was also an automatic filter in place, which deleted comments that contained certain key words. A victim of defamation could also contact Delft directly and the comment would be removed immediately. Delft had also provided 'Rules of Comment' in an attempt to regulate the conduct of commenters, which also functioned as a disclaimer stating that comments did not reflect the views of the company, and that the authors of the comments would be responsible for their content.

On the 24th January 2006, Delft published an article entitled 'SLK destroyed Planned Ice Road.' SLK are a public limited company who provide a ferry service between Estonian mainland and certain islands, and the Ice roads are public roads over the frozen sea providing access between the mainland and islands during the Winter. (3) The article reported that in changing its routes, SLK had delayed the building of the ice roads. Over a period of 24 hours the article attracted 185 comments, 20 of which were identified as containing personal threats and were offensive against L, the sole and majority shareholder of SLK. (4)

On the 9th March 2006, L's lawyers requested that Delfi remove the offensive comments and claimed damages of approximately 32000 Euros. (5) That same day Delfi removed the offensive comments, but refused the claim for damages. Consequently, L brought a civil suit against Delfi.

At first instance the domestic Court found in favour of Delfi, holding that the comment area should be distinguished from the journalistic activities on the basis that the administration of the comment area was conducted on a mechanical and passive nature, therefore the company was not under an obligation to monitor the comments. (6) Furthermore, liability was excluded under the Information Society Services Act 2004, which implemented the European E-Commerce Directive. (7) L successfully appealed and the case was remitted to the Court of first instance.

On remittance the Court found in favour of L, as it deemed the Information Society Services Act 2004 inapplicable and relied instead on the Obligations Act 2002, awarding L approximately 320 Euros in damages. …